Lorain County Judge James Burge removed from Jalowiec case

COLUMBUS -- Ohio Chief Justice Maureen O'Connor has disqualified Lorain County Common Pleas Judge James Burge from the Stanley Jalowiec case, but Burge can remain on the Albert Fine and Shannon Weber cases.

O'Connor wrote in an affidavit that another judge will be assigned to Jalowiec's case and that Assistant Lorain County Prosecutor Anthony Cillo did not bring any specific allegations of bias or prejudice in the Fine or Weber cases. O'Connor also denied Cillo's request for Burge to be disqualified from all of Cillo's cases.

According to the decision, Cillo has claimed that his "complex and often contentious history" with Burge, combined with recent public comments by Burge involving Cillo's involvement in an alleged disciplinary investigation of Burge, has created impropriety.

Cillo recently submitted an affidavit from Assistant Lorain County Prosecutor Nick Hanek who stated that Burge said to him, "he (Cillo) thinks that I would make a ruling based on him when there's a man (convicted killer Stanley Jalowiec) who certainly deserves a new trial ..."

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Burge has denied making the statement stating he never expressed his thinking in Jalowiec's case. Jalowiec, from Elyria, is a death row inmate asking for a new trial, claiming evidence favorable to him was withheld by prosecutor's during his trial. Weber, a former Lorain County jail nurse is accused of trying to kill her son; and Fine is accused of the murder of his girlfriend, Catherine "Kat" Hoholski, in July 2012. He faces the death penalty if convicted.

O'Connor wrote that Burge did not rest with just submitting a response to Cillo's affidavit, but has commented to the media about Cillo's allegations which then "triggered the filing of Cillo's supplemental affidavit with more allegations of bias and prejudice against the judge."

The result has been a public dispute and could cause someone to believe that Burge has become "Cillo's adversary," thereby making a possibly "intolerable atmosphere" in the courtroom, wrote O'Connor.

The media statements aren't the sole factor of disqualifying Burge. O'Connor wrote that Burge also did not respond to some of the allegations in Cillo's supplemental affidavit, which include a claim that Burge "discarded the traditional route of reassignment in Jalowiec's case in order to preside over the case himself."

O'Connor wrote that the reassignment of the case should not imply that Burge actually expressed an opinion, holds a personal bias against Cillo or engaged in any unethical conduct.

"Judge Burge steadfastly denies making the alleged comment to Hanek, and it is quite possible that there was a misunderstanding of what was said and meant," O'Connor wrote. "Nevertheless, even in cases where no evidence of actual bias or prejudice is apparent, disqualification is often necessary to avoid the appearance of impropriety and to ensure the parties' and the public's 'absolute confidence in the fairness of the proceedings.'"

Jalowiec's attorney, Kim Rigby, said she and Jalowiec's other attorney just want to move Jalowiec's case forward. "We feel confident that whatever court is assigned to Stan's case will hear the evidence and conclude that Stan is innocent and that his constitutional rights were violated, and will determine that he deserves a new trial," she said.

Burge, who preferred to not comment much about the matter, said he just wants to move forward.

"It's just time for everyone to move on," Burge said.

Lorain County Prosecutor Dennis Will said they have to put their arguments and opinions aside and have to follow what was ordered.

"We will abide by the decision and move forward," Will said. "It's not unusual when you're practicing law that you don't agree with some of the decisions, but we will do our jobs and move forward just like we always do."

Cillo did not return a call seeking comment.

When requesting for Burge to be off his cases entirely, O'Connor wrote that Cillo's arguments are unconvincing. Cillo contended that Burge hurt his integrity in a public comment to the Ohio Parole Board about an alleged disciplinary investigation. Burge had spoken to the parole board during Nancy Smith's clemency hearing, requesting that she gets clemency. Smith and co-defendant Joseph Allen were convicted of molesting Lorain Head Start students in 1994 and spent 15 years in prison. Burge acquitted the two in 2009. A hearing about resentencing the pair will be held June 4.

Burge has said that Cillo and another one of Smith's attorneys told him to hold off on sending Smith back to prison. But Burge stated that the disciplinary counsel told him that Cillo denies saying that. Cillo argued that it makes him seem like he is an "untruthful person."

As for Burge's comment to the parole board, O'Connor wrote that it is a stretch to interpret the as suggesting Cillo lied to investigators.

Burge has previously contended in his own affidavit that he has no bias against Cillo. Burge wrote that he knows Cillo only to be a "capable trial attorney that is always prepared, organized, technically sound, credible and dedicated to his cause." He also wrote that no transcript would show evidence other than Burge has treated Cillo as a professional.